214 Pa. 640 | Pa. | 1906
Opinion by
This is an action of assumpsit to recover damages for the breach of the defendant company’s covenant in the contract between it and the plaintiff company .to perform the agreement which the latter had made with Van Orden Brothers to furnish ice to them during the seasons of 1899 and 1900. The defendant did not deny its covenant nor the failure to observe it. It however set up several defenses which the learned court below correctly held to be insufficient and the jury was instructed to render a verdict for the plaintiff. It is not necessary to discuss separately the numerous assignments, many of which raise the same questions, and we must disregard the pleadings in so far as they do not comply with the practice act of 1887. This eliminates from the case some of the questions suggested, and much of the argument contained, in the appellant’s paper-book.
The recovery of a judgment by Van Orden Brothers against the Pocono Spring Water Ice Company for the default of the American Ice Company gave the Pocono company a right of action against the latter company and justified a verdict and judgment for the amount which the Pocono company was compelled to pay. The liability of the Pocono company was fixed by the judgment, and the return of the sheriff to an execution thereon showed that the money had been paid. There was no evidence to warrant any other inference or conclusion than
The learned court was clearly right in declining to submit to the jury the .question whether the American Ice Company had been evicted from the leased premises by the fraud of the Pocono company. There was not a scintilla of evidence in the case to sustain the defendant’s allegation of fraud. The acts or circumstances suggested as evidence of fraud were not sufficient to create in an unbiased mind even a suspicion of wrong. They are constantly occurring in transactions of this character and are regarded as perfectly proper and legitimate. -As has been repeatedly said, fraud is never presumed, but must be established either try direct proof or by facts clearly proved sufficient to warrant a presumption of its existence.
The covenant for quiet enjoyment was a distinct and independent covenant from that of the defendant to assume the Van Orden Brothers contract: Wright v. Smyth, 4 W. & S. 527; Obermyer v. Nichols, 6 Binney, 159; Fame Insurance Company’s Appeal, 83 Pa. 396. A breach of the covenant was not a bar to this action by the plaintiff: Obermyer v. Nichols, supra. If, however, at the time the action was brought, the defendant company had suffered any damages by reason of the failure of the plaintiff company to perform its covenant for quiet enjoyment it could recoup the damages sustained by reason of the default. No fraud or bad faith having been shown on the part of the plaintiff, the defendant could not recover the value of the improvements it made on the premises for the prosecution of its business: Lanigan v. Kille, 97 Pa. 120. Nor can we see how, under the circumstances and evidence in the case, the defendant can in this action avail itself of any damages sustained by reason of the eviction. Notice to the defendant company to surrender possession of the leased premises was served after this action was brought, and it was not required to, and did not, remove from the premises until three months thereafter. There was, therefore, no eviction at the impetration of the writ in this case. There had been no interference with the defendant’s beneficial enjoyment of the demised premises up to that date, and consequently no eviction. It follows that there could be no set-off in this action for a
A like trouble arose when the defendant company attempted to prove the loss it had sustained by reason of' the failure of the plaintiff to comply with its covenant to keep the premises in repair. Whatever damages the defendant suffered by reason of this default, it was entitled to set off in this action. It first conceived the measure of damages to be the value of the repairs which it had made, but it failed to show the amount it had expended for repairs and hence the jury was given no data from which it could find a verdict. Subsequently the defendant called a witness to show the difference in the rental values of the premises by reason of the failure of the plaintiff to perform its covenant to repair. If that was the proper measure of damages, the difference was not shown, as the only witness offered for the purpose was properly held to be incompetent and his evidence was excluded.
We do not agree with the contention of the defendant that the plaintiff company was prevented from maintaining this action by reason of the sale of its property and franchises made on the Fulmer execution. The plaintiff was clearly a corporation for “ trading purposes ” whose charter had expired, within the purview of the Act of May 21, 1881, P. L. 30. That act is entitled “ An act to enable mining, manufacturing, and trading companies to wind up their affairs, after the expiration of their charters.” It provides that “ all corporations for mining, manufacturing or trading purposes, .... whose charters may have expired, or may hereafter expire, may bring suits and maintain and defend suits already brought for the protection and possession of their property and the collection of debts and obligations owing to or by them, and sell, convey and dispose of their property, and make title therefor as fully
It is equally apparent, we think, that the act was intended to apply to all trading corporations whose business had ceased or terminated for any cause whatever, and was not confined to corporations whose charters had expired by express limitation. Why, it may be asked, should the legislature have enacted a remedy for the stockholders and creditors of a trading corporation whose charter had expired by limitation and not of a corporation whose charter rights had been extinguished by any other means ? The evil was the same in both cases. So far as such- interested parties are concerned the effect was the same, whether the corporation had expired by limitation or its property n,nd franchises had been sold under execution. If this
The learned judge of the court below correctly disposed of the case and therefore the judgment is affirmed.